P.N.Goel - (1.) THIS is an appeal against the order dated 27-5-1977 passed by Judicial Magistrate, Nakur, Saharanpur acquitting the respondents of the offences punishable under Sec. 120-B and 420 IPC.
(2.) THE learned counsel for the [parties have been heard. On 10-3-1969 the appellant filed a complaint before the Judicial Magistrate, City, Saharanpur. THE gist of the complaint is that th? appellant purchased three phase power machine from the respondents. THE respondents installed the machine. THEre it was found that in fact it was single phase power machine. THE respondents were summoned and on 9-6-1971 Additional Munsif Magistrate framed charges. THE charges were vague. THE respondents moved the Sessions Judge. THE Additional Sessions Judge made a reference to this Court. THE reference was numbered 540 of 1973 in this Court.. It was disposed of by an order dated 24-8-1976. This court directed the Magistrate to frame proper and specific charges after considering the material on record. The record along with a copy of this court's order dated 24-8-1976 reached the court of the Magistrate on 25-10-1976. The case was then transferred to the court of Judicial Magistrate, Nakur. On 4-3-1977 the case was fixed for 4-4-1977 for arguments in connection with the framing of the charge. On 4-4-1977 the appellant moved an application (104) that he be permitted to be recalled and re-examined to prove the letters of Chandra Kant, respondent before re-framing the charges. The complainant was examined on the same day. Then the case was fixed for 7-4-1977 for framing the charge. On 7-4-1977 the personal presence of the respondents was exempted and the case was fixed for 18-4-1977 for framing charge. It seems that the record was sent to the court of the Sessions Judge. Therefore no order was passed on 18-4-1977. On 27-4-1977 the record was received from the court of the Sessions Judge and the Magistrate fixed 9-5-1977 for framing the charge and directed that the parties be summoned for the said date. On 9-5-1977 the appellant was absent, that the respondents were present and that fresh charge was framed. The case was then fixed for 17-5-1977 for the cross-examination of the complainant appellant and his witnesses. The complainant: and his two witnesses, Jyoti Prasad and Jogmindar Dass were examined by 19-8-1970 under Sec. 252 of (old) CrPC. Therefore, their cross-examination was to be recorded in accordance with Sec. 256 CrPC. On 17-5-1977 the appellant and his witnesses were not present. Jyoti Prasad had refused to take summons. Jogminder Dass was not served. It was ordered that bailable warrants be issued against Jyoti Prasad and fresh summons be issued against the appellant and Jogminder Oass fixing 20-5-1977. On 20-5-1977 the appellant was absent and it was found that he was not served with the summons. Jyoti Prasad and Jogmiader Dass appeared. Both of them applied for adjournment on the grounds of illness. Their request was accepted and the case was fixed for 23-5-1977. It was further ordered that a fresh summon be issued to the appellant. On 23-5-1977 Jogminder Dass was cross examined. Jyoti Prasad moved an application for adjournment with a medical certificate. It may be stated that Jogminder Dass refused to give statement as he was indisposed. Only one question was put to him in cross-examination. It is thus that in collusion with the complainant and to prolong the case he was not prepared to give statement. He denied the suggestion. The case was fixed for 25-5-1977 saying that last opportunity was being given to the appellant to appear for cross-examination and for adducing remaining witnesses and that no further date would be given. On 25-5-1977 the appellant was absent. No person appeared on his behalf. The respondents were present. The hearing of the case was adjourned from 12.30 to 3jOO P. M. Then at 3.30 P. M. it was found that the appellant was absent and no person appeared on his behalf. The respondents and their counsel were present. Intimation was received from the court of the Sessions Judge that the counsel for the appellant had been informed of the date i.e. 25-5-1977. In the circumstances it was ordered that the statements of the witnesses be expunged. The Magistrate then recorded the statements of the respondents under Sec. 342 CrPC and fixed 26-5-1977 for arguments. On 26-5-1977 the arguments of the respondents were heard and the order of acquittal was then passed on 27-5-1977. Two facts glaringly appear on record; (1) from 9-5-1977, the date on which the Magistrate framed charge again upto 25-5-1977 the appellant was absent. He was not served with the summons and (2) Jyoti Prasad and Jogminder Dass both were ill. It is evident that from 9-5-1977 the proceedings were taken up at very short intervals. Taking into consideration the fact that the two witnesses were ill and the complainant was not being served, the Magistrate should have adjourned the case for a reasonable time. The haste on the part of the Magistrate is not understandable. This case is a clear instance of the abuse of the process of the court.
(3.) IT has further to be remarked that the charges framed on 9-5-1977 were vague in the same manner as the changes framed on 9-6-1971. The Magistrate did not comply with the order of this Court passed in Criminal Reference No. 540 of 1973. It has also to be remarked that the appellant brought a vague complaint. In the complaint he did not mention the dates on which the machine was installed by the respondents. He also did not meet ion the date on which he found that instead of three phase power machine, it was single phase power machine. Before framing the charge the Magistrate should have carefully gone through the statement of the complainant under Sec. 200 CrPC as well as the statements of the complainant and his witnesses under Sec;. 252 CrPC. In case these statements were also vague, he should have put specific questions to the complainant and thereby should have cleared the position and then only specific charges should have been framed.;